99-002057 Agency For Health Care Administration vs. Watch Care, Inc. Status: Closed Recommended Order on Friday, September 29, 2000.

Summary: Petitioner did not establish that Respondent offered services beyond scope of adult day care license by caring for two individuals on separate but adjoining property with separate staff. Exact nature of contract between individuals not shown.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 99-2057

)

WATCH CARE, INC., )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on July 27, 2000, in Jacksonville, Florida, before the Division

of Administrative Hearings, by its designated Administrative Law

Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Michael O. Mathis, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Suite 3408D

Tallahassee, Florida 32308

For Respondent: Jamie Glavich, General Manager, pro se

Watc h Care, Inc.

100 West First Street

Atlantic Beach, Florida 32233

STATEMENT OF THE ISSUE

The issue in this case is whether the licensee, Watch Care,

Inc., should be fined for providing services beyond the scope of

its adult day care license, and if so, in what amount.

PRELIMINARY STATEMENT

An administrative complaint dated April 9, 2000, was filed

against Respondent, Watch Care, Inc. (Watch Care), for alleged

violation of regulatory standards for providing services beyond

the scope of its adult day care license. Specifically,

Petitioner, Agency for Health Care Administration (AHCA),

alleged that Respondent was operating an unlicensed assisted

living facility on the adult day care center premises.

Respondent filed a petition for a formal administrative hearing.

Respondent's request for hearing was forwarded to the Division

of Administrative Hearings.

At the hearing Petitioner presented the testimony of two

witnesses and introduced one composite exhibit into evidence.

Respondent presented the testimony of one witnesses and offered

five exhibits into evidence.

After the hearing Petitioner submitted its Proposed

Recommended Order on September 5, 2000. Respondent did not

submit a proposed recommended order.

FINDINGS OF FACT

1. Responden t, Watch Care, is licensed to operate an adult

day care center at 100 West First Street, Atlantic Beach,

Florida. The day care center is licensed to provide services to

30 people.

2. An adult day care facility is only licensed to provide

care-taking services for a limited period of time during the

day. A day care facility cannot provide care-taking services 24

hours a day. At the time, Respondent was not licensed to

provide 24-hour assisted living services.

3. Watch Care's adult day care center is located in one

side of a building at 100 West First Street. The entire

building is owned by Watch Care. The other side of the building

contained apartments or rooms in which two elderly people had

resided for a number of years. The two areas were separated by

a wall and had separate entrances. However, both areas had the

same address. Even so, the separate area does not appear to

have been included for review during any agency inspections done

prior to January 27, 1999, since agency inspectors appeared to

be unaware of the two occupants living in the separate area.

Upon these facts, the evidence did not demonstrate that this

separate area was part of the adult day care license. It does

appear to be separate property owned by Watch Care and used for

a purpose different from the adult day care center next door.

Other than the corporation, no human owner lived on either of

the two premises.

4. In January 1999, Petitioner received an anonymous

complaint that Respondent was running an unlicensed Assisted

Living Facility (ALF). On January 27, 1999, the inspector for

Respondent, for the first time found that two people were living

next door to the adult day care. Respondent admitted that the

two residents lived in the section of the building adjoining the

adult day care.

5. Prior to January 1999, Respondent believed that Florida

Statutes permitted two unrelated people to reside at a facility

without being licensed as an ALF. At some point Respondent

discovered the law regarding unrelated residents had changed.

By statute, Respondent had six months to comply with the changed

law. Respondent moved the residents to another facility within

the six months following the statute change.

6. The two residents had been living next door to the

adult day care center for more than two years. The residents

had lived next door to the day care center at the behest and

with the consent of both the residents and their families.

7. During the daytime the residents went to Watch Care's

adult day care center. While not at the day care, certain staff

persons associated with Watch Care would perform care-taking

services for the residents. The care-taking services were

provided separate from any services the staff persons may have

performed during their shifts at Watch Care and the services

were not performed while working on their shift at Watch Care.

Importantly, the evidence did not establish the terms of any

written or oral contract or the parties to such a contract. In

short, it is just as likely that these separate care-taking

services were being provided and paid for separately by the two

residents living in the separate part of the building. The

evidence was insufficient to establish that Watch Care offered

24-hour care-taking services as part of its day care center

program as opposed to providing such services as a private

corporation entitled to enter into contracts separate from the

day care center and its other business.

8. At the time of the inspection, Respondent intended and

eventually did apply for and became licensed as an ALF. The ALF

license was issued on July 9, 1999, and is in effect to date.

The ALF license covers the area of the building adjacent to the

adult day care center where the two residents lived.

CONCLUSIONS OF LAW

9. The Division o f Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

10. Section 58A-6.014(1)(b), Florida Administrative Code,

provides:

The owner of a center or its operator or

employee found in violation of this part or

of rules adopted under this part may be

fined by the agency. A fine may not exceed

$500 for each violation. In no event,

however, may such fines in the aggregate

exceed $5,000.

11. ALF's are required to be licensed in Florida pursuant

to Section 400.407, Florida Statutes.

12. The only exemption for licensure is set forth in

400.404, Florida Statutes which states:

(1) For the administration of this part,

facilities to be licensed by the agency

shall include all assisted living facilities

as defined in this part.

(2) The following are exempt from licensure

under this part:

(a) Any facility, institution, or other

place operated by the Federal Government or

any agency of the Federal Government.

(b) Any facility or part of a facility

licensed under chapter 393 or chapter 394.

(c) Any facility licensed as an adult

family-care home under part VII.

(d) Any person who provides housing, meals,

and one or more personal services on a 24-

hour basis in the person's own home to not

more than two adults who do receive optional

state supplementation. The person who

provides the housing, meals, and personal

services must own or rent the home and

reside therein.

(e) Any home or facility approved by the

United States Department of Veterans Affairs

as a residential care home wherein care is

provided exclusively to three or fewer

veterans.

(f) Any facility that has been incorporated

in this state for 50 years or more on or

before July 1, 1983, and the board of

directors of which is nominated or elected

by the residents, until the facility is sold

or the ownership is transferred; or any

facility, with improvements or additions

thereto, which has existed and operated

continuously in this state for 60 years or

ore on or before July 1, 1989, is directly

or indirectly owned and operated by a

nationally recognized fraternal

organization, is not open to the public, and

accepts only its own members and their

spouses as residents.

(g) Any facility certified under chapter

651, or a retirement community, may provide

services authorized under this part or part

IV of this chapter to its residents who live

in single-family homes, duplexes,

quadruplexes, or apartments located on the

campus without obtaining a license to

operate an assisted living facility if

residential units within such buildings are

used by residents who do not require staff

supervision for that portion of the day when

personal services are not being delivered

and the owner obtains a home health license

to provide such services. However, any

building or distinct part of a building on

the campus that is designated for persons

who receive personal services and require

supervision beyond that which is available

while such services are being rendered must

be licensed in accordance with this part.

If a facility provides personal services to

residents who do not otherwise require

supervision and the owner is not licensed as

a home health agency, the buildings or

distinct parts of buildings where such

services are rendered must be licensed under

this part. A resident of a facility that

obtains a home health license may contract

with a home health agency of his or her

choice, provided that the home health agency

provides liability insurance and workers'

compensation coverage for its employees.

Facilities covered by this exemption may

establish policies that give residents the

option of contracting for services and care

beyond that which is provided by the

facility to enable them to age in the place.

For purposes of this section, a retirement

community consists of a facility licensed

under this part or under part II, and

apartments designed for independent living

located on the same campus.

(h) Any residential unit for independent

living which is located within a facility

certified under chapter 651, or any

residential unit which is colocated with a

nursing home licensed under part II or

colocated with a facility licensed under

this part in which services are provided

through an outpatient clinic or a nursing

home on an outpatient basis.

13. Section 400.551(1), Florida Statutes, provides that

"adult day care center" means:

Any building, buildings, or part of a

building, whether operated for profit or

not, in which is provided through its

ownership or management, for a part of a

day, basic services to three or more persons

who are 18 years of age or older, who are

not related to the owner or operator by

blood or marriage, and who require such

services. (emphasis supplied)

14. Section 400.451, Florida Statutes, pro vides:

Any facility which is in operation at the

time of promulgation of any applicable rules

or standards adopted or amended pursuant to

this part may be given a reasonable time,

not to exceed six months, within which to

comply with such rules and standards.

15. In this case, Respondent is not charged with operating

an unlicensed ALF. Respondent is charged with providing

services outside the scope of its adult day care license. The

difficulty is that this case involves two different licenses

with separate statutory schemes and a person's right to enter

into contracts or conduct other business separate from any

license granted by the state. In order for such a charge not to

conflict with and interfere with a person's or entity's right to

contract privately, the services must be performed or offered

under the adult day care license and on the adult day care

premises. Neither of these conditions was established by the

evidence. Therefore, the Petitioner has failed to establish

that Respondent provided services outside the scope of it's

license and the Administrative Complaint should be dismissed.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That Petitioner Agency for Health Care Administration enter

a final order finding Respondent Watch Care, Inc., not guilty of

providing services beyond the scope of its license and

dismissing the Administrative Complaint.

DONE AND ENTERED this 29th day of September, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of September , 2000.

COPIES FURNISHED:

Michael O. Mathis, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Suite 3408D

Tallahassee, Florida 32308

Jamie Glavich, General Manager

Watch Care, Inc.

100 West First Street

Atlantic Beach, Florida 32233

Sam Power, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Suite 3431

Tallahassee, Florida 32308

Julie Gallagher, General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Suite 3431

Tallahassee, Florida 32308

Ruben J. King-Shaw, Jr., Director

Agency for Health Care Administration

2727 Mahan Drive

Building 3, Suite 3116

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.